The Supreme Court of Vermont Law Blog: An on-going conversation about the practice of law in Vermont, featuring summaries of Vermont Supreme Court decisions, a dollop of lampooning, legal analysis, and a charming aggregation of creative thought.

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Saturday, June 24, 2017

Keep Doing What You’re Doing

Long story short: the North Country Sportsman’s Club is allowed to keep doing what it’s been doing.

Here’s the longer version. The North Country Sportsman’s Club, which I’ll just call the Club, has been around for some fifty-odd years. There isn’t a super-clear description of the Club in the opinion, but I take it from the description that it’s a shooting range available for skeet shooting. People probably also do shooting practice there with targets and whatnot.

In 2004 the Town of Williston made an ordinance prohibiting certain levels of noise. However, the ordinance exempted certain noise, including sport shooting under certain permitted conditions. The ordinance also specifically called for an agreement to be made between the Town and the Club to outline when the Club could operate. The ordinance doesn’t mention this particular club by name, which makes me wonder if there are multiple shooting clubs or ranges operating in Williston, or if the Town just didn’t want to call out this particular club specifically in the ordinance. Not that it’s super relevant; it just made me wonder.

Anyway, in May of 2007, the Town and the Club made an agreement that reflected the Club’s historical use of Wednesdays from 4 til dusk and Sundays from 9-4. It also allowed for Saturday special events, but didn’t exactly define what a “special event” would be. Over the years there have been roughly 12 special events per year. The agreement required the Club to give the Town 48 hours’ notice for a special event. I’m envisioning maybe that they have a shooting competition on a Saturday once in a while, and since something like that would take some planning, in theory it wouldn’t be a burden to give the Town a heads-up that this was going to happen. And it makes sense that the Town should know what’s going on if people hear shots on a Saturday when normally there’s only shooting on Sundays.

The agreement stood for several years. In 2014 the Town wanted to renegotiate its agreement with the Club, and wanted to limit the Club to only 6 special events per year. The Town essentially said that if the Club didn’t renegotiate to 6 events per year, then the Town would try to limit the Club to 1-2 special events per year.

The Club didn’t want to go below its historical use, and didn’t accept the Town’s proposal essentially to halve their special events. The practical part of me assumes the Club generates some amount of revenue from the special events, and by cutting them in half, could end up in serious financial straits. So, the Club didn’t sign the new agreement. A week after the old agreement expired, the Town cited the Club for noise violations (I assume because club members showed up to do some shooting as they normally would) on two occasions. Those citations were filed with the Vermont Judicial Bureau.

The Club filed a complaint in the Civil Division seeking declaratory judgment based on a state statute regarding sport shooting. They wanted the court to establish that the state statute overrides certain municipal ordinances that seek to put limits on shooting. The Club reasoned that as long as it acted within its historical use and practices, that the Town could not force it into an agreement about use or cite it for noise. The Town filed a counterclaim but didn’t ask for anything in particular.

The parties filed cross motions for summary judgment. The Town asked the court to order that the parties go to mediation, but didn’t ask for a particular outcome to be sought.

The trial court ruled that the Town had no authority to limit the Club’s hours to levels below what they were doing in 2005, the Town could not demand a written agreement about hours of operations, and that it could issue noise citations. The Court’s rationale was that although the state statute regarding sport shooting says that municipalities cannot limit the actual shooting, they can enforce noise ordinances. The Club could take measures to buffer the sound—using silencers and other soundproofing—to reduce the noise produced from discharging firearms.

The Club appealed, and the Supreme Court affirms in part and reverses in part, essentially saying, “Hey North Country Sportsman’s Club, you can keep doing what you’re doing.”

The state legislature specifically limited municipalities’ authorities to prohibit or limit sport shooting at existing shooting ranges. The various clubs and ranges throughout the state can continue to operate, so long as they do so at their historic operation levels. Towns are able to regulate firearm usage within their limits so long as town ordinances do not run afoul of state statutes. Here, the legislature decided in 2006 to make this exception for sport shooting at existing shooting establishments.

The 2006 statute came about not because of noise, but because of issues surrounding civil liability for existing shooting ranges. There are shooting clubs and groups across the state, and in the early 2000s found that their insurance rates were going up due to potential for civil liability. The legislature recognized that these historical community groups probably couldn’t continue to operate due to rising insurance costs. In order to help them keep their organizations going at historical levels, the legislature created a statute that contemplated maintaining the clubs by limiting what people could sue the clubs for. The focus was about keeping the clubs at their historical levels, not necessarily about increasing their use.

The statute limits who has standing to bring nuisance claims against existing shooting clubs to abutting property owners. And it limited the scope of what the nuisance actually could be—it has to be that the shooting activity has a “noxious and significant interference with the use and enjoyment of the abutting property.” There’s also a rebuttable presumption in the statute that says the shooting club isn’t a nuisance at all if it has continuously operated at historical levels and the abutting property was purchased subsequently.

In other words, you can’t buy a house next to a gun range that’s been there for 50 years and then sue the gun range for people using the gun range the way they always have. If someone doesn’t want the sounds of shooting next to their property occasionally, they’d be best advised not to buy a house next door to a gun range. It’s different if the person buys the house knowing it’ll be noisy twice a week, but then the gun range turns into a 24/7 shoot-o-rama.

The statute also says that if a shooting range substantially complies with noise conditions set forth in a land use permit that it isn’t subject to civil liability for noise pollution. It also says that if no permit is required, then the owner or user of the shooting range isn’t liable for noise complaints. The statute says nothing about liability for municipal noise complaints. SCOV takes the larger point of the statute and caselaw to mean that an existing shooting range, operating at historical levels, is not liable to a municipality for noise complaints under those conditions. If the Club, or any club for that matter, were to expand its use, then it may be liable for noise complaints.

SCOV also questions the Town’s ability to force the Club into a contract regarding hours of operation.

So, back to the long story short. The Club can keep doing what it’s doing.